Mukasey's son Marc L. Mukasey, as of 2007, leads the white-collar criminal defense practice in the New York office of Bracewell & Giuliani.[16] The Mukaseys have a professional relationship with Rudy Giuliani; Mukasey and son were also justice advisers to Rudy Giuliani's presidential campaign.[17] Mukasey administered the oath of office to Mayor-elect Giuliani in 1994 and 1998.[17]

During his tenure on the bench, Mukasey presided over the criminal prosecution of Omar Abdel Rahman and El Sayyid Nosair, whom he sentenced to life in prison for a plot to blow up the United Nations and other Manhattan landmarks uncovered during an investigation into the 1993 World Trade Center bombing.[14] During that case, Mukasey spoke out against leaks by law enforcement officials regarding the facts of the case allegedly aimed at prejudicing potential jurors against the defendants.[20] During that case, the Jewish judge also refused to recuse himself, warning that the demand for his recusal would “disqualify not only an obscure district judge such as the author of this opinion, but also Justices Brandeis and Frankfurter … each having been both a Jew and a Zionist.”[21]

In June 2003, Democratic New York Senator Charles Schumer submitted Mukasey's name, along with four other Republicans or Republican appointees, as a suggestion for Bush to consider for nomination to the Supreme Court.[22]

On October 14, 2004, citing U.S. Supreme Court precedent, Mukasey reversed his September 2002 decision and dismissed a case in which plaintiffs in twenty consolidated actions sued the Italian insurance company Generali S.p.A. (Generali), seeking damages for nonpayment of insurance proceeds to beneficiaries of policies purchased by Holocaust victims before the end of World War II.[23] In so ruling, Mukasey gave deference to "a federal executive branch policy favoring voluntary resolution of Holocaust-era insurance claims."[24]

Although Article III of the U.S. Constitution entitles district court judges to hold their judicial appointments for life, in June 2006 Mukasey announced that he would retire as a judge and return to private practice at the end of the summer. On August 1, 2006, he was succeeded as Chief Judge of the Southern District by Judge Kimba Wood. Mukasey's retirement took effect on September 9, 2006. On September 12, 2006, Patterson Belknap Webb & Tyler announced that Mukasey had rejoined the firm as a partner.[25]

On the March 18, 2007, episode of Meet the Press, Schumer suggested Mukasey as a potential Attorney General nominee who, "by [his] reputation and career, shows that [he] put rule of law first."[26]

On August 22, 2007, the Wall Street Journal published Mukasey's op-ed, prompted by the resolution of the Padilla prosecution, in which he argued that "current institutions and statutes are not well suited to even the limited task of supplementing . . . a military effort to combat Islamic terrorism." Mukasey instead advocated for Congress, which "has the constitutional authority to establish additional inferior courts", to "turn [its] considerable talents to deliberating how to fix a strained and mismatched legal system."[29]

On September 16, 2007, various publications reported that Mukasey accepted Bush's offer to replace Alberto Gonzales as the Attorney General.[30] He was nominated by the President on September 17, 2007. At his nomination press conference with the President, Mukasey stated, "The task of helping to protect our security, which the Justice Department shares with the rest of our government, is not the only task before us. The Justice Department must also protect the safety of our children, the commerce that assures our prosperity, and the rights and liberties that define us as a nation."[31]

White House spokeswoman Dana Perino said on September 18 that the administration desired the Mukasey nomination be confirmed by October 8, 2007. She cited past prompt confirmations of attorneys general. Senator Patrick Leahy, the Democratic Chairman of the Senate Judiciary Committee, said that Mukasey would commit to an administrative rule to ensure that only the Attorney General or Deputy Attorney General, not U.S. Attorneys or other Justice employees, could respond to inquiries from politicians regarding outstanding cases, and that any other employee who discusses cases "with somebody outside, whether from the White House or members of Congress or something else like that, they will be fired"; this concession sought to avoid problems that arose during the controversy over the dismissal of U.S. Attorneys under the previous Attorney General's tenure.[32]

President George W. Bush listens to remarks by Mukasey after announcing his nomination to be Attorney General.

On October 2, 2007 Mukasey's written response to a pre-hearing Senate Judiciary Committee questionnaire was received by the committee, and published. Leahy replied the next day by letter proposing to meet individually on October 16, to discuss numerous issues on which the White House has declined to respond; the letter outlined issues and commitments Leahy desires from the nominee.[33][34] On November 6 the Senate Judiciary Committee endorsed the nomination of Mukasey, by an 11 to 8 vote, and sent his confirmation on to the full Senate.[35] Two days later, the Senate confirmed Mukasey by a 53–40 vote.[36] The tight vote was the narrowest margin to confirm an attorney general in more than 50 years.[37]

Senator Leahy announced on October 31, 2007 that a committee vote on the nomination was scheduled for Tuesday, November 6.[41] The announcement came a day after Mukasey replied via letter to the committee, to questions and requests for clarification.[42] Leahy and the other nine Democratic committee members had indicated the week before, via letter, to Mukasey that they were "deeply troubled by your refusal to state unequivocally that waterboarding is illegal during your confirmation hearing..."[43] By holding an unusual Oval Office meeting with journalists on November 1, 2007, Bush signaled his concern that the nomination, which was previously judged to be a sure bet, was in peril, primarily over what is and is not considered illegal torture.[44] Mukasey has refused to state an unequivocal legal position on the interrogation technique known as waterboarding (in which water is poured over a rag on the prisoner's face to simulate drowning), and it appears that he was concerned about the potential pursuit of government employees or agents, and their authorizing superiors in American or foreign courts under criminal charges, when responding to the Senate Judiciary committee questions.[44][45]

In describing the issue's challenges to the Bush administration, the New York Times quoted Scott L. Silliman, director of the Center on Law, Ethics and National Security at Duke University as saying about such court cases, which could ultimately reach the president: "You would ask not just who carried it out, but who specifically approved it." Robert M. Chesney, of Wake Forest University School of Law, and other national security specialists have pointed out that prosecution within the United States, would be impeded by laws adopted since 2005 which permit safe-harbor protections to interrogators for governmentally authorized actions. It is believed that secret Justice Department legal opinions approved waterboarding and other procedures officially called "harsh interrogation techniques".[44]

In 2009, legal ethics complaints were filed against Mukaskey and other Bush administration attorneys for their roles in advocating torture.[46][47][48]

Mukasey and Giuliani have been friends since working at the same law firm in the early 1970s.[49] Mukasey pledged to recuse himself from cases involving Giuliani.[50] Newspaper reports assumed that Mukasey would further recuse himself from cases involving Bernard Kerik, a former New York City police commissioner under Giuliani, who was under federal investigation for bribery and other offenses. However, neither presidential spokespersons nor Mukasey returned reporters' inquiries into whether Mukasey would recuse himself from the Kerik case.[51][52]

During Giuliani's 2008 presidential campaign, Mukasey's stepson, Marc, was assigned by Giuliani's campaign to block Kerik's legal defense team from interviewing witnesses that might assist his defense in an attempt to protect Giuliani from the Kerik case.[53]

Speaking in London on March 14, 2008, Mukasey said that he hopes the detainees currently charged with participating in the September 11, 2001 attacks aren't executed if found guilty in order to avoid creating any martyrs.[56] Speaking in New York on March 5, 2012, Mukasey said his comments in 2008 were taken out of context. His "martyr" comment was a humorous reason offered as the only reason not to seek the death penalty. He then said if the detainees were found guilty, they should be executed in the due process of the law and not make an exception.

Speaking in San Francisco to the California Commonwealth Club on March 27, 2008, Mukasey defended President Bush's program of wiretapping calls between Americans and suspected foreign terrorists without court authorization, and implied that the government might have been able to prevent the attacks of September 11, 2001 if it had been able to wiretap a specific call to the U.S. from Afghanistan. Before September 11, 2001, Mukasey said, "We knew that there had been a call from someplace that was known to be a safe house in Afghanistan, and we knew that it came to the United States. We didn't know precisely where it went." He paused, seemed to stifle tears or at least suppress emotion, then continued, "You've got 3,000 people who went to work that day, and didn't come home, to show for that."[57] In a subsequent letter to Mukasey, House Judiciary Committee Chairman John Conyers questioned whether any such phone call had ever actually occurred and, if so, why the government hadn't been able to use its then-existing legal authority and technological capabilities to monitor it.[58][59]

On August 12, 2008 Mukasey told American Bar Association annual meeting delegates that "not every wrong, or even every violation of the law, is a crime", with "only violations of the civil service laws" being found among hiring practices during Gonzales' tenure as Attorney General.[60]

Defence of waterboarding and other enhanced interrogation techniques[edit]

On December 11, 2014, Mukasey publicly stated on CNN that he believed waterboarding could not be called torture.[61] In a 2008 hearing, he said waterboarding would feel like torture if he were subjected to it.[62]

In November 2008, during a speech to the Federalist Society, Mukasey had "a fainting spell" caused by a late-night speech given under hot stage lights.[63] Mukasey was rushed to the hospital and released the next day after tests ruled out a stroke or heart attack. Doctors characterized him as "very fit."[64]

^Heller, Jamie. "Mukasey's Pedigree", The Wall Street Journal Online, Law Blog, September 17, 2007. Accessed September 17, 2007. "Mukasey graduated from Ramaz in 1959 and went on to Columbia College and Yale Law School."